CHAPTER XXII

ADJUDICATION, APPEALS AND REVIEW

22.1 This chapter examines the meaning and scope of
adjudication and appeals, as well as the provisions with respect to
adjudication, appeals and revision under the CGST Act.

Meaning of Adjudication:

22.2 The term ‘adjudication’ is neither defined in goods and

services tax legislations, namely, the CGST Act, the IGST Act, or the
SGST Act/UTGST Act. Therefore, the meaning of the term must be
gathered from the judgments of the courts of law in India on this
subject matter.
22.3 The following is an examination of the definition of
‘adjudication’ in common parlance and in legal dictionaries. According
to the Chamber’s English Dictionary, ‘adjudication’ denotes – ‘to
determine judicially, to pronounce an award, to pronounce judgment,
to act as a judge in a competition’. As per the Compact Oxford
Dictionary of Current English, ‘adjudicate’ means ‘make a formal
judgment on a disputed matter’; ‘judge a competition’. The Law
Lexicon by Mr.T.P Mukherjee gives the meaning of ‘adjudication’ as
‘giving or pronouncing a judgment or a decree’. Concise Law
Dictionary by P.RamanathaAiyar defines ‘adjudication’ to mean ‘to
hear or try and determine, as a court’; ‘to settle by judicial decree’.
22.4 The above definitions indicate that the following
ingredients must be present in an adjudication order:

• The order should pronounce a decree or judgment or award;

• Wherein certain issues (which will prejudicially affect the
rights of the parties) must be determined by a judge.

Difference between an administrative and a judicial order:

22.5 A question arose before the Hon’ble Apex Court as to the
difference between an administrative order and a judicial order, in the
case of Shankarlal Aggarwal and Ors. v. Shankarlal Poddar and
Ors., AIR 1965 SC 507. The Supreme Court in the said case
observed that while it is not possible to formulate a definition that
would satisfactorily distinguish between the two:

• An administrative order would be one which is directed to

the regulation or supervision of matters, whereas a judicial
order decides the rights of parties or confers (or refuses to
confer) rights to property which are are the subject of
adjudication before the concerned court;
 • One test of identifying a judicial decision is whether a matter
that involves the exercise discretion is left for the decision of
the authority(particularly if that authority were a court) and
if the discretion has to be exercised on objective, as
distinguished from a purely subjective, consideration.
• The power entrusted to or exercised by a person who
functions as a court is not decisive of the question whether
the act or decision is administrative or judicial.
• Similarly, the Hon’ble Court observed that the absence of a
lis(or a controversy or dispute) between two partiesdoes not
negate the order as being a judicial order.

Meaning and scope of jurisdiction of a Court or quasi-judicial

authority:

22.6 In order to adjudge upon any dispute,acourt or quasi-

judicial authority must have jurisdiction. Jurisdiction broadly means
the extent of the power of the court or quasi-judicial authority to
entertain cases, suits, appeals and applications. The term
‘jurisdiction’ denotesthe extent of the authority of a court to
administer justice with reference to the subject-matter of the disputes
as wellas the territorial and pecuniary limits of the jurisdiction.
22.7 The concept of jurisdiction was examined and expounded
by a full bench in Hriday Nath Roy v. Ram Chandra, AIR 1921 Cal.
34, where the Hon’ble Court defined jurisdiction as follows:
‘The power of the Court to hear and determine a cause, to adjudicate
and exercise any judicial power in relation to it; in other words…the
authority which a court has to decide matters that are litigated before it
or to take cognizance of matters presented in a formal way for its
decision’.

The Hon’ble Court observed that jurisdiction has been defined

by the courts of law in India as ‘the power to hear and determine
issues of law and fact’.
‘The authority by which the judicial officers take cognizance of and
decide a legal controversy’, the power to hear and determine the
subject-matter in controversy between parties to a suit and to adjudicate
or exercise any judicial power over them; ‘the power to hear, determine
and pronounce judgment on the issues before the Court’; the power or
authority which is conferred upon a Court by the Legislature to hear and
determine causes between parties and to carry the judgments into
effect, to apply the law, to pronounce judgment and carry into
execution.’

22.8 As observed above, there are three main aspects to the

jurisdiction of a court or a quasi-judicial authority as regards tax
disputes:
 1. Jurisdiction over the subject-matter - In tax disputes involving
civil consequences, the power of adjudication has been
conferred specifically on tax officers. Hence, the district and
lower courts do not have any jurisdiction to adjudicate. The
appellate tribunals, the High Courts and the Supreme Court of
India have jurisdiction to hear tax matters in appeal, subject to
the writ jurisdiction of the High Courts and the Supreme Court
of India.

2. Territorial jurisdiction - The Departmental adjudicating

authorities can only hear and decide such cases arising within
the territorial jurisdiction of the said adjudicating authorities.
The same is applicable for the Appellate Tribunal and the High
Courts in the case of tax appeals.

3. Pecuniary jurisdiction - The goods and services tax legislations

prescribe monetary limits for different classes of officers
restricting their powers to hear and adjudicate upon disputes.
For example,

22.9 In addition, the jurisdiction of a court may be original or

appellate. In the exercise of its original jurisdiction, a court entertains
original suits; while in the exercise of its appellate jurisdiction, it
entertains appeals. The Munsiff’s court and the Court of Small Causes
have only original jurisdiction, whereas the District Judge’s court and
the various High Courts have both original and appellate jurisdiction.
22.10 The concept of jurisdiction may be illustratedby the
following cases:

- Commissioner of Customs v. Sayed Ali & Anr., 2011-

TIOL-20-SC-CUS: This case concerned the jurisdiction of
proper officers to issue notice under customs law. The case
concerned whether an order passed under the Customs Act,
1962was void as it was not passed by the ‘proper officer’
under Section 28 read with Section 2(34) of the Customs Act,
1962.

The Supreme Court held that:

‘from a conjoint reading of Sections 2(34) and 28of the Act, it is

manifest that only such customs officer who has been assigned the
specific functions of assessment and re-assessment of duty in the
jurisdictional area where the import concerned has been affected, by
either the Board or the Commissioner of Customs, in terms of Section
2(34) of the Act is competent to issue notice under Section 28 of the
Act. Any other reading of Section 28 would render the provision of
Section 2(34) of the Act otiosein as much as the test contemplated
 under Section 2(34) of the Act is that of specific conferment of such
functions.’

In rejecting the Revenue’s appeal in the case, the Apex Court

held that:

‘If the Revenue’s contention that once territorial jurisdiction is

conferred, the Collector of Customs (Preventive) becomes a ‘proper
officer’ in terms of Section 28 of the Act is accepted, it would lead to
a situation of utter chaos and confusion, in as much as all officersof
customs, in a particular area be it under the Collectorate of Customs
(Imports) or the Preventive Collectorate, would be ‘proper officers’.In
our view therefore, it is only the officers of customs, who are
assigned the functions of assessment, which of course,would
include re-assessment, working under the jurisdictional Collectorate
within whose jurisdiction the bills of entry or baggage declarations
had been filed and the consignments had been cleared for home
consumption, will have the jurisdiction to issue notice under Section
28 of the Act’.

- Union of India And Ors. v. Ram Narain Bishwanath and

Anr., (1998) 9 SCC 285: This case concerned a dispute
regarding the jurisdiction of the Customs authorities in West
Bengal to seize goods that were imported by the respondents
at Paradip port (in the State of Orissa) and subsequently
transported to Howrah (in the State of West Bengal), on the
ground that such goods were imported on the basis of
fictitious licenses. Although the Apex Court held that it was
for theCustomsauthoritiesatParadip port to initiate
proceedings against the respondents on such grounds, it
granted liberty to the Customs authorities at Paradip port to
issue notice and adjudicate the matter afresh.

- Ambica Industries v. Commissioner of Central Excise,

2007 (213) ELT 323 SC: In this case, the Appellant was
carrying on business and assessed for tax at Lucknow.
However, the appeal preferred by the Appellant came up
before the Central Excise and Service Tax Appellate Tribunal
(CESTAT), New Delhi (which has territorial jurisdiction over
the State of Uttar Pradesh, National Capital Territory of Delhi
and the State of Haryana). An appeal was subsequently
preferred to the High Court at Delhi under Section 35G of
the Central Excise Act, 1944. The Division Bench of the High
Court at Delhi held that it had no territorial jurisdiction in
the matter, pursuant to which the matter was appealed
against before the Supreme Court.

The Apex Court stated that:

 ‘By way of necessity, a Tribunal may have to exercise jurisdiction
but it does not appeal to any reason that the Parliament intended,
despite providing for an appeal before High Court, that appeals may
be filed before different High Courts at the sweet will of the party
aggrieved by the decision of the Tribunal. Doctrine of cause of action
is not invocable in such cases. High Court situated in the State
where first Court is located is to be considered as the appropriate
authority.’

Monetary Limits under CGST Act:

22.11 In terms of Circular No.31/05/2018 – GST (F. No.

349/75/2017-GST) dated 9th February, 2018, all officers up to the
rank of Additional/Joint Commissioner of CentralTax are assigned as
the proper officer for issuance of show cause notices and orderscase of
issuance of show cause notices and orders under sections 73 and 74
of the CGST Act in particular (described in detail below). For the
purpose of optimal distribution of work relating to the issuance of the
said show cause notices and orders, the CBIC has assignedfunctions
to the proper officersin relation to issue of show cause notices and
orders under sections 73 and 74 of the CGST Act up to the monetary
limits as mentioned below:

Sl. Officer of Monetary Monetary Monetary

No. Central Tax limit of the limit of the limit of the
amount of amount of amount of
central tax integrated central tax
(including tax and
cess) not (including integrated
paid or short cess) not tax
paid or paid or short (including
erroneously paid or cess) not
refunded or erroneously paid or
input tax refunded or short paid
credit of input tax or
central tax credit of erroneously
wrongly integrated refunded or
availed or tax wrongly input tax
utilized for availed or credit of
issuance of utilized for central tax
show cause issuance of and
notices and show cause integrated
passing of notices and tax wrongly
orders under passing of availed or
 sections 73 orders under utilized for
and 74 of sections 73 issuance of
CGST Act and 74 of show cause
CGST Act notices and
made passing of
applicable to orders
matters in under
relation to sections 73
integrated and 74 of
tax vide CGST Act
section 20 of made
the IGST Act applicable
to
integrated
tax vide
section 20
of the IGST
Act

(1) (2) (3) (4) (5)

1. Superintendent Not exceeding Not exceeding Not

of Central Tax Rupees 10 Rupees 20 exceeding
lakhs lakhs Rupees 20
lakhs

2. Deputy or Above Above Rupees Above

Assistant Rupees 10 20 lakhs and Rupees 20
Commissioner lakhs and not exceeding lakhs and
of Central Tax not exceeding Rupees 2 not
Rupees 1 crores exceeding
crore Rupees 2
crores

3. Additional or Above Above Rupees Above

Joint Rupees 1 2 crores Rupees 2
Commissioner crore without without any crores
of Central Tax any limit limit without any
limit
Adjudication under the Goods and Services Tax Law:
22.12 Section 2(4) of the CGST Act defines an adjudicating
authority as:
Any authority, appointed or authorised to pass any order or
decision under this Act, but does not include the Central Board of
Excise and Customs, the Revisional Authority, the Authority for
Advance Ruling, the Appellate Authority for Advance Ruling, the
Appellate Authority and the Appellate Tribunal;

22.13 Vide Notification No.2/2017-Central Tax dated 19th

June, 2017, the Central Board of Indirect Taxes and Customs (CBIC)
has specified the scope of territorial jurisdiction of various officers
appointed under the CGST Act and theIGST Act.

22.14 Vide Circular No.1/1/2017 (F.No.349/75/2017-GST)

dated 26 June, 2017, the CBIC has designated the proper officer
th

for provisions relating to registration and composition levy under the

CGST Act as well as the rules made thereunder.Vide Circular
No.3/3/2017 (F.No.349/75/2017-GST) dated 5thJuly, 2017, the
CBIC has designated the proper officer for provisions other than
registration and composition levy under the CGST Act.
22.15 The provisions relating to adjudication are contained in
several sections of the CGST Act, some of which are described below:
- Levy of penalty for opting for composition levy despite not
being eligible - Section 10 of the CGST Act provides the
option for a registered taxpayer (with an aggregate turnover
in the preceding financial year belowthe threshold of one
crore rupees or seventy-five lakh rupees in specified States,
vide Notification No.8/2017 – Central Tax dated 13th
October, 2017)to pay,in lieu of the tax payable by him, an
amount calculated at a flat tax rate. In terms of Section
10(5), however, if a proper officer has reasons to believe that
a taxable person has paid tax under Section 10(1) despite
not being eligible, then such person shall be liable to pay any
tax payable by him under the other provisions of the CGST
Act as well as a penalty. The Assistant or Deputy
Commissioners of Central Tax and the Assistant or Deputy
Directors of Central Tax are the proper officers designated for
the exercise of the power under Section 10(5) of the CGST
Act, vide Circular No.1/1/2017 (F.No.349/75/2017-GST)
dated 26th June, 2017.
- Cancellation of Registration - Section 29 of the CGST Act
read with Rule 22 of the CGST Rules provides for
cancellation of registration under the CGST Act in certain
cases.
In terms of Section 29(2) of the CGST Act, the proper
officer has the power to cancel the registration of a person
 from such date, including any retrospective date, as he
may deem fit, in the following cases:
a) A registered person has contravened such provisions of
the CGST Act or the rules made thereunder as may be
prescribed;
b) A person paying tax under Section 10 of the CGST Act
(i.e. under the composition scheme) has not furnished
returns for three consecutive tax periods;
c) Any registered person, other than a person who has
opted for the composition scheme under Section 10 of
the CGST Act, has not furnished returns for a
continuous period of six months;
d) Any person who has taken voluntary registration
under Section 25(3) of the CGST Act has not
commenced business within six months from the date
of registration; or
e) Registration has been obtained by means of fraud,
willful misstatement or suppression of facts
However, the Proviso to Section 29(2) states that the
proper officer shall not cancel the registration without
giving the person an opportunity of being heard.
The Superintendent of Central Tax is the proper officer
designated for the exercise of the power under Section 29(2)
of the CGST Act, vide Circular No.1/1/2017
(F.No.349/75/2017-GST) dated 26 June, 2017.
th

- Determination of tax not paid or short paid or erroneously

refunded or input tax credit wrongly availed or utilized -
Section 73 of the CGST Act provides for a quasi-judicial
determination by a proper officer of whethertax has not been
paid/has been short paid/has been erroneously refunded, or
input tax credit has been wrongly availed/utilized, for
reasons other than fraud, any wilful misstatement or
suppression of facts.
Sections 73(2) and 73(10) mandate that a proper officer is
required to issue a notice at least three months prior to the
expiration of three years from the due date for furnishing of
annual return (for the financial year to which the tax not
paid or short paid or input tax credit wrongly availed or
utilized relates to) or within three years from the date of
erroneous refund. In terms of Section 73(9), the proper
officer shall consider the representation (if any) made by a
person chargeable with tax before determining the amount of
tax, interest and a penalty equivalent to ten per cent of tax or
ten thousand rupees (whichever is higher). The proper officer
is required to issue an order after consideration of such
representation – as per Section 73(10), this order must be
passed within three years from the due date for furnishing of
annual return for the financial year to which the tax not paid
 or short paid or input tax credit wrongly availed or utilised
relates to or within three years from the date of erroneous
refund.
Section 74 of the CGST Act provides for a quasi-judicial
determination by a proper officer of whether tax has not been
paid/has been short paid/has been erroneously refunded, or
input tax credit has been wrongly availed/utilized, by reason
of fraud, any wilful misstatement or suppression of facts. In
terms of Sections 74(2) and 74(10), the time limit for issue of
notice in such cases is at least six months prior to the
expiration of five years from the due date for furnishing of
annual return for the financial year to which the tax not paid
or short paid or input tax credit wrongly availed or utilized
relates to or within five years from the date of erroneous
refund.

As per the Circular No.31/05/2018 (F. No.

349/75/2017-GST) dated 9th February, 2018, all officers
up to the rank of Additional/Joint Commissioner of Central
Tax are assigned as the proper officer for issuance of show
cause notices and orders under Sections 73 and 74.

- Tax collected but not paid to the Government: Section 76 of the

CGST Act prescribes that where a person has collected from
any other person any amount as representing the tax under
the CGST Act, and has not paid the said amount to the
Government, such amount shall be paid forthwith to the
Government, irrespective of whether the supplies in respect
of which such amount was collected are taxable or not.
Section 76(2) mandates that where any amount is required
to be paid to the Government under Section 76(1) and has
not been so paid, the proper officer may serve on the person
liable to pay such amount a notice requiring him to show
cause as to why the said amount (as specified in the notice)
should not be paid by him to the Government and why a
penalty equivalent to the amount specified in the notice
should not be imposed on him under the provisions of the
CGST Act.

In terms of Section 76(3), if any representation is made by

the person on whom the aforementioned notice is served
under Section 76(2), the proper officer shall consider such
representation and thereafter determine the amount due
from such person. If such person submits a written request
for an opportunity of hearing, then such request shall be
granted in accordance with Section 76(5).Section 76(6)
stipulates that a proper officer shall issue an order within
one year from the date of issue of the notice, which time
period may be extended by virtue of Section 76(7). Further,
 Section 76(8) mandates that the proper officer shall set out
the relevant facts and the basis of his decision, in his order.
The aforementioned provisions of Section 76 indicate that
there is a quasi-judicial determinationof the amount due by
such person.

Vide Circular No.1/1/2017 (F.No.349/75/2017-GST)

dated 26th June, 2017, the Deputy or Assistant
Commissioner of Central Tax is the proper officer designated
for the purpose of exercise of powers under Section 76 of the
CGST Act.

- Power to impose penalty in certain cases: Section 127 of the

CGST Act provides that the proper officer may issue an order
levying such penalty after giving a reasonable opportunity of
being heard to such person who, in the view of the proper
officer, is liable to a penalty and the same is not covered
under any proceedings under the following provisions of the
CGST Act:
a) Section 62 (Assessment of non-filers of returns);
b) Section 63 (Assessment of unregistered persons);
c) Section 64 (Summary assessment in certain special
cases);
d) Section 73 (Determination of tax not paid or short paid
or erroneously refunded or input tax credit wrongly
availed or utilized for any reason other than fraud or
any willful misstatement or suppression of facts);
e) Section 74 (Determination of tax not paid or short paid
or erroneously refunded or input tax credit wrongly
availed or utilized by reason of fraud or any willful
misstatement or suppression of facts);
f) Section 129 (Detention, seizure and release of goods
and conveyances in transit); or
g) Section 130 (Confiscation of goods or conveyances and
levy of penalty).

- Confiscation of goods or conveyances and levy of penalty: In

terms of Section 130 of the CGST Act, if any person who
commits the acts described below, then all such goods or
conveyances (described below) shall be liable to confiscation
and the person shall be liable to penalty under section 122 of
the CGST Act:
(i) Supplies or receives any goods in contravention of any
of the provisions of the CGST Act or the rules made
thereunder with the intent to evade payment of tax;
(ii) Does not account for any goods on which he is liable to
pay tax under the CGST Act;
(iii) Supplies any goods liable to tax under the CGST Act
without having applied for registration;
 (iv) Contravenes any of the provisions of the CGST Act or
the rules made thereunder with intent to evade
payment of tax; or
(v) Uses any conveyance as a means of transport for
carriage of goods in contravention of the provisions of
the CGST Act or the rules made thereunder, unless the
owner of the conveyance proves that it was so used
without the knowledge or connivance of the owner
himself, his agent (if any) and the person in charge of
the conveyance.

In terms of Section 130(4), the proper officer shall not

pass an order for confiscation of goods or conveyance or for
imposition of penalty without giving the person an opportunity
of being heard. In terms of Circular No.1/1/2017
(F.No.349/75/2017-GST) dated 26th June, 2017, the Deputy
or Assistant Commissioner of Central Tax has the power to
adjudge confiscation and penalty under Section 130 of the
CGST Act.

Meaning of Appeal:
22.16 The right to appeal is a substantive right that is provided
in all tax statutes. It is not an absolute right, since it may be subject
to fulfilment of conditions stipulated in the concerned statute. The
Supreme Court and the various High Courts have examined the
nature and concept of ‘appeal’ in several matters. A few key decisions
are discussed below:

- Chakkara Chappan v. Moidin Kutti, (1899) ILR 22 Mad

68: In the said case, a full bench of the Madras High Court
observed that –

‘According to Webster’s Dictionary the first meaning in law of the

noun appeal is ‘the removal of a cause or a suit from an inferior to a
superior Judge or Court for re-examination or review’. The
explanation of the term in Wharton’s Law Lexicon is only different in
words. That explanation is ‘the removal of a cause from an inferior to
a superior Court for the purpose of testing the soundness of the
decision of the inferior Court’.’

From the above definitions, the Court stipulated a broad

meaning of the word ‘appeal’ as ‘the power of a superior Court
to review the decision of an inferior Court’.
 The High Court observed that there are two elements
required to constitute appellate jurisdiction – namely, the
existence of the relation of a superior and an inferior Court,
and the power of the superior Court to review the decisions
of the inferior Court.

The High Court furtherexplained that the essential criterion

of appellate jurisdiction is, ‘that it revises and corrects the
proceedings in a cause already instituted and does not create
that cause’. In the context of judicial tribunal, an appellate
tribunal necessarily implies that the subject-matter of appeal
has already been instituted and acted upon by another
(inferior) Court whose judgments or proceedings are now
sought to be revised.

The High Court noted that appellate jurisdiction may be

exercised in a variety of forms which may be prescribed by
legislature. The jurisdiction is exercisable only in certain
specified cases–it may be claimed by a party either as a
matter of right or only upon obtaining leave of the inferior
Court that has passed the decision that is appealed against.
The power of review or revision may either be confined to
points of law or may extend to questions of fact. Legislative
provisions in this regard only stipulate some of the
limitations under which appellate jurisdiction is allowed to
be exercised.

- Shiv Shakti Cooperative Housing Society, Nagpur v.

Swaraj Developers and Ors. AIR 2003 SC 2434: In the said
case, the Supreme Court observed that an appeal is
essentially a continuation of original proceedings. Hence, the
provisions of the tax statute that were applied at the time of
institution of the relevant suit operate even in respect of
appeal. This is so because the remedy of an appeal is a
vested right in the litigant. A legislation has to be interpreted
to mean as one affecting such right to be prospectively
operative only in cases where vested rights are involved.
The Apex Court observed that the right to appeal is
created only by a statute. The appeal is, in strict terms, ‘one
in which the question is, whether the order of the Court from
which the appeal is brought was right on the materials which
that Court had before it’. The right of appeal (in cases where
such right exists) is a matter of substance and not
procedure.
Importantly, the Supreme Court observed that the ‘right to
appeal is statutory. Right of appeal inherits in no one. When
conferred by statute it becomes a vested right. In this regard
there is essential distinction between right to appeal and right
to suit. Where there is inherent right in every person to file a
 suit and for its maintainability it requires no authority of law,
appeal requires so.’

- Hari Shankar and Ors. v. Rao Girdhari Lal Chowdhury,

AIR 1961 SC 698: The Supreme Court observed that the
‘distinction between the appeal and a revision is a real one. A
right to appeal carries with it a right of re-hearing on law as
well as fact, unless the statute conferring the right of appeal
limits the re-hearing in some way, as has been done in second
appeals arising under the Code. The power of hearing revision
is generally given to a superior Court so that it may satisfy that
a particular case has been decided according to law’.

22.17 Examples of the manner in which right to appeal may be

circumscribed by conditions stipulated in the tax statute can be seen
in the following cases:
- In Vijay Prakash D. Mehta and Anr v. Collector of
Customs (Preventive), Bombay, 1988 (18) ECR 369 (SC)
the appellants sought for further reduction of mandatory
deposit (which, in terms of the Customs Act, 1962, was a
pre-condition for the right to appeal).The appellants relied on
the Proviso to Section 129E of the Customs Act, 1962 to
claim that the deposit would cause undue hardship.
The Supreme Court held that ‘right to appeal is neither an
absolute right nor an ingredient of natural justice the principles
of which must be followed in all judicial and quasi-judicial
adjudications. The right to appeal is a statutory right and it can
be circumscribed by the conditions in the grant.’ It observed
that the proviso gave a discretion to the Customs, Excise and
Gold (Control) Appellate Tribunal to dispense with the
obligation to deposit in case of ‘undue hardships’. However,
that discretion must be exercised on relevant materials,
honestly, bona fide and objectively. Once that position is
established, it cannot be contended that there was any
improper exercise of the jurisdiction by the Appellate
Authority. Hence, in this particular case, it held that there
was no such error of jurisdiction or misdirection.

- Anant Mills Co. Ltd. v. State of Gujarat and Ors., (1975) 2

SCC 175: In this case, the Supreme Court held that ‘the right
of appeal is the creature of a statute. Without a statutory
provision creating such a right the person aggrieved is not
entitled to file an appeal. We fail to understand as to whythe
legislature while granting the right of appeal cannot impose
conditions for the exercise of such right. In the absence of any
special reasons, there appears to be no legal or constitutional
impediment to the imposition of such conditions.’
 As an illustration, the Supreme Court referred to an
erstwhile provision, namely Section 30 of the Indian Income
Tax Act, 1922, the proviso to which stated that ‘no appeal
shall lie against an order under Section 46(1)unless the tax
had been paid’. The Apex Court observed that such
conditions merely regulate the exercise the right of appeal in
order to avoid abuse of such right by a recalcitrant party and
to avoid difficulty in the enforcement of the order appealed
against in case the appeal is ultimately dismissed.
Further, it stated that ‘it is opento the legislature to impose
an accompanying liability upon a party upon whom a legal
right is conferred or to prescribe conditions for the exercise of
the right. Any requirement for the discharge of that liability or
the fulfilment of that condition in case the party concerned
seeks to avail of the said right is a valid piece of legislation,
and we can discern no contravention of Article 14 in it.’

Condonation of delay:

22.18 In the context of central excise laws, the Apex Court held
in the case M/S Singh Enterprises v. Commissioner of Central
Excise, Jamshedpur & Ors., (2008) 3 SCC 70 that the language
used in Section 35 of the Central Excise Act, 1944 ‘makes the position
clear that the legislature intended the appellate authority to entertain the
appeal by condoning delay only upto 30 days after the expiry of 60
days which is the normal period for preferring appeal. Therefore, there
is complete exclusion of Section 5 of the Limitation Act. The
Commissioner and the High Court were therefore justified in holding that
there was no power to condone the delay after the expiry of 30 days
period.’
22.19 Similarly, Commissioner of Customs and Central
Excise v. Hongo India (P) Ltd. and Anr., 2009 (4) SCALE 374
concerned the questionwhether the High Court has power to condone
the delay in presentation of the reference application under
unamended Section 35H(1) of the Central Excise Act, 1944 beyond the
prescribed period by applying Section 5 of the Limitation Act, 1963.
The Supreme Court held ‘the language used in Sections 35 (of the
Central Excise Act, 1944)…makes the position clear that the legislature
intended the appellate authority to entertain the appeal by condoning the
delay only up to 30 days after expiry of 60 days which is the
preliminary limitation period for preferring an appeal. In the absence of
any Clause condoning the delay by showing sufficient cause after the
prescribed period, there is complete exclusion of Section 5 of the
Limitation Act.’ In other words, the Apex Court opined that it was clear
the intent of the legislature no power would be granted to condone the
delayin filing appeal and reference to the High Court after expiry of the
prescribed period of one-hundred and eighty (180) days as stipulated
in the Central Excise Act, 1944.
Provisions Relating to Appeal:

22.20 Chapter XVIII of the CGST Act, containing Sections 107 to

121, contains inter alia provisions relating to appeals under the CGST
Act. The territorial jurisdiction of the Commissioner of Central Tax
(Appeals) and Additional Commissioner of Central Tax (Appeals) has
been notified vide Notification No. 2/2017 – Central Tax dated 19th
June, 2017.

Provisions regarding Appellate Authority:

22.21 In terms of Section 2(8) of the CGST Act, an appellate
authority means an ‘authority appointed or authorized to hear appeals
as referred to in section 107’.Section 107 of the CGST Act provides for
filing of appeals before the appellate authority, in the manner
described below:
- What decisions may be appealed against: Any person
aggrieved by a decision or order passed by an
adjudicating authority under the CGST Act, or any of the
SGST or UTGST Acts, may appeal to the prescribed
Appellate Authority [Section 107(1)].
- Time period for filing appeal: The appeal must be filed
within a period of three (3) months from the date on
which the said decision or order is communicated to such
person [Section 107(1)].
- Appeal by authorized officer: The Commissioner of Central
Tax may, either on his own motion or upon the request of
the Commissioner of State Tax/Commissioner of Union
Tax, call for the records of any proceedings in which an
adjudicating authority has passed the said decision or
order and examine such records for the purpose of
ascertaining the legality or propriety of the said
decision/order. If the Commissioner is not satisfied, he
may pass an order directing any officer subordinate to
him to apply to the Appellate Authority within six (6)
months from the date of communication of the said
decision/order, for the determination of such points
arising out of the said decision or order as may be
specified by the Commissioner in his order [Section
107(2)]. Such application by the authorized officer shall
be considered as an appeal made against the said
decision/order of the adjudicating authority (and the
authorized officer were an appellant) and the provisions of
the CGST Act relating to appeals shall accordingly apply
to such application [Section 107(3)].
- Extension of time limit for filing appeal: The Appellate
 Authority may extent the time limit of presenting the
appeal by a further period of one (1) month if he is
satisfied that the appellant was prevented by sufficient
cause from presenting the appeal within the aforesaid
period of three months or six months, as the case may be
[Section 107(4)].
- Form and verification: Every appeal under Section 107
must be filed in the prescribed form and shall be verified
in the prescribed manner [Section 107(5)].
- Mandatory pre-deposit: No appeal shall be filed under
Section 107(1) unless the appellant has paid both:a) in
entirety,the part of amount of tax, interest, fine, fee and
penalty arising from the impugned order (i.e. order
challenged before Appellate Authority), as is admitted by
him;and (b) a sum equal to ten per cent (10%) of the
remaining amount of tax in dispute arising from the said
order, in relation to which the appeal has been filed
[Section 107(6)].
If such amounts under Section 107(6) are paid by
the appellant, the recovery proceedings for the balance
amount shall be deemed to be stayed [Section 107(7)].
However, in terms of the Recommendations made
during the 28th meeting of the GST Council held on 21st
July, 2018, it has been proposed that theamount of pre-
deposit payable for filing of appeal before the Appellate
Authoritybe capped at Rs.25 crores.
- Opportunity of hearing:TheAppellate Authority shall give
an opportunity to the appellant of being heard [Section
107(8)]. The Appellate Authority may grant time to any
party/parties and adjourn the hearing of appeal if
sufficient cause is shown at any stage of hearing of an
appeal. It must record the reasons of granting such
adjournment in writing. However, no such adjournment
shall be granted more than three times to a party during
hearing of the appeal [Section 107(9)].
- Addition of grounds of appeal: At the time of hearing of an
appeal, the Appellate Authority may allow an appellant to
add any ground of appeal not specified in the grounds of
appeal, if it is satisfied that the omission of that ground
from the grounds of appeal was not willful or
unreasonable [Section 107(10)].
- Order of Appellate Authority: The Appellate Authority shall,
after making such further inquiry as may be necessary,
pass such order (as it thinks just and proper)which may
confirm, modify or annul the decision or order appealed
against. However, the Appellate Authority shall not refer
the case back to the adjudicating authority that passed
the said decision or order. [Section 107(11)].
An order enhancing any fee/penalty/fine in lieu of
 confiscation/confiscating goods of greater value, or
reducing the amount of refund/input tax credit, shall not
be passed unless the appellant has been given a
reasonable opportunity of showing cause against the
proposed order [First Proviso, Section 107(11)].
If the Appellate Authority is of the opinion that any
tax has not been paid or short-paid or erroneously
refunded, or where input tax credit has been wrongly
availed or utilized, no order requiring the appellant to pay
such tax or input tax credit shall be passed unless the
appellant is given notice to show cause against the
proposed order. Further, such order must be passed
within the time limit specified under Section 73 or Section
74 [Second Proviso, Section 107(11)].
- Order disposing of the appeal: The order of the Appellate
Authority disposing of the appeal shall be in writing and
shall state the points for determination, the decision
thereon and the reasons for such decision [Section
107(12)].
- Time limit within which appeal must be heard and
decided:The Appellate Authority shall,where it is possible
to do so, hear and decide every appeal within a period of
one year from the date on which it is filed. However,
where the issuance of order is stayed by an order of a
court or Tribunal, the period of such stay shall be
excluded in computing the period of one year [Section
107(13)].
- Communication of order on disposal of appeal: The
Appellate Authority shall communicate the order passed
by it to the appellant, respondent as well as to the
adjudicating authority on the disposal of the appeal
[Section 107(14)]. A copy of the said order shall also be
sent to the jurisdictional Commissioner (or the authority
designated by him in this behalf) and the jurisdictional
Commissioner of State tax or Commissioner of Union
Territory Tax (or an authority designated by him in this
behalf) [Section 107 (15)].
- Order passed under Section 107 to be final and binding,
subject to certain provisions: Subject to the provisions of
Section 108 (i.e. Powers of Revisional Authority), Section
113 (i.e. Orders of the Appellate Tribunal), Section 117
(i.e. Appeal to High Court) or Section 118 (i.e. Appeal to
Supreme Court), the order passed by the Appellate
Authority under Section 107 shall be final and binding on
the parties [Section 107(16)].
Appeals before the Appellate Tribunal:
22.22 Constitution of Appellate Tribunal and Benches Thereof -
Section 109 provides for the constitution of the Appellate Tribunal
and its benches in the following manner –
- Constitution of Appellate Tribunal: The Government
shall,on the recommendations of the Goods and Services
Tax Council, constitute(by way of notification) an
Appellate Tribunal known as the Goods and Services Tax
Appellate Tribunal for hearing appeals against the orders
passed by the Appellate Authority or the Revisional
Authority [Section 109(1)].
- Appellate Powers to be exercised by Regional and
AreaBenches: The powers of the Appellate Tribunal shall
be exercisable by the National Bench and Benches thereof
(the ‘Regional Benches’), State Bench and Benches
thereof (the ‘Area Benches’) [Section 109(2)].
- Composition of National Bench: The National Bench of the
Appellate Tribunalshall be situated at New Delhi and shall
be presided over by the President and shall consist of one
Technical Member (Centre) and one Technical Member
(State) [Section 109(3)].
- Constitution and Composition of Regional Bench: The
Government shall, on the recommendations of the Goods
and Services Tax Council, constitute such number of
Regional Benches as may be required.Each Regional
Bench shall consist of a Judicial Member, one Technical
Member (Centre) and one Technical Member (State)
[Section 109(4)].
- Jurisdiction of National and Regional Benches:The National
Bench or Regional Benches of the Appellate Tribunal shall
have jurisdiction to hear appeals against the orders
passed by the Appellate Authority or the Revisional
Authority in the cases where one of the issues involved
relates to the place of supply [Section 109(5)].
- Constitution of State Bench: In addition, the Government
shall, by notification, specify a Bench of the Appellate
Tribunal for each State or Union territory (the ‘State
Bench’) for exercising the powers of the Appellate
Tribunal within the concerned State or Union territory.
On receiving a request from any State Government, the
Government shall constitute such number of Area
Benches in that State, as may be recommended by the
Goods and Services Tax Council. Furthermore, the
Government may (either on receiving a request from any
State or on its own motion for a Union territory) notify the
Appellate Tribunal in a State to act as the Appellate
Tribunal for any other State or Union territory, based on
the recommendations of the Goods and Services Tax
 Council and subject to such terms and conditions as may
be prescribed [Section 109(6)].
- Jurisdiction of State Bench or Area Benches: The State
Bench or Area Benches shall have jurisdiction to hear
appeals against the orders passed by the Appellate
Authority or the Revisional Authority in the cases
involving matters other than those relating to the place of
supply [Section 109(7)].
- Composition of State and Area Benches: Each State Bench
and Area Benches of the Appellate Tribunal shall consist
of a Judicial Member, one Technical Member (Centre) and
one Technical Member (State). The State Government may
designate the senior most Judicial Member in a State as
the State President [Section 109(9)].
- Hearing of appeal in absence of a Member in a Bench: In
the absence of a Member in any Bench due to vacancy or
otherwise, any appeal may, with the approval of the
President or, as the case may be, the State President, be
heard by a Bench of two Members. However, any appeal
where the tax or input tax credit involved/the difference
in tax or input tax credit involved/the amount of fine, fee
or penalty determined in any order appealed against, does
not exceed five lakh rupees and which does not involve
any question of law may, with the approval of the
President and subject to such conditions as may be
prescribed on the recommendations of the Goods and
Services Tax Council, be heard by a bench consisting of a
single member [Section 109(10)].
- Difference in opinion on any point(s) among Members: If the
Members of the National/Regional/State/Area Benches
differ in opinion on any point(s), it shall be decided
according to the opinion of the majority, if there is a
majority.
However, if the Members are equally divided, they shall
state the point or points on which they differ. The case
shall then be referred by the President (or as the case may
be, State President) for hearing on such point or points to
one or more of the other Members of the
National/Regional/State/Area Benches and such point(s)
shall be decided according to the opinion of the majority
of Members who have heard the case, including those who
first heard it [Section 109(11)].
- Vacancy not to invalidate act or proceedings of Appellate
Tribunal:No act or proceedings of the Appellate Tribunal
shall be questioned or shall be invalid merely on the
ground of the existence of any vacancy or defect in the
constitution of the Appellate Tribunal [Section 109(14)].
22.23 Procedure before Appellate Tribunal: Section 111
prescribes the procedure before the Appellate Tribunal, as set out
below –

- Application of principles of natural justice: The Appellate

Tribunal shall not be bound by the procedure laid down
in the Code of Civil Procedure, 1908 while disposing of
any proceedings before it or an appeal before it. However,
it shall be guided by the principles of natural justice
during such proceedings. Subject to the other provisions
of the CGST Act and the rules made thereunder, the
Appellate Tribunal shall have power to regulate its own
procedure [Section 111(1)].
- Appellate Tribunal to have same powers as vested in a civil
court in certain cases:For the purposes of discharging its
functions under the CGST Act, the Appellate Tribunal
shall have the same powers as are vested in a civil court
under the Code of Civil Procedure,
1908whiletryingasuitinrespectofthefollowingmatters,
namely –
a) Summoning and enforcing the attendance of any
person and examining him on oath;
b) Requiring the discovery and production of documents;
c) Receiving evidence on affidavits;
d) Requisitioning any public record or document or a
copy of such record or document from any office,
subject to the provisions of sections 123 and 124 of the
Indian Evidence Act, 1872 (which relate to evidence as
to affairs of State and official communications,
respectively);
e) Issuing commissions for the examination of witnesses
or documents;
f) Dismissing a representation for default or deciding it
ex parte;
g) Setting aside any order of dismissal of any
representation for default or any order passed by it ex
parte; and
h) Any other matter that may be prescribed [Section
111(2)].
- Enforcement of order of Appellate Tribunal: An order made
by the Appellate Tribunal may be enforced by it in the
same manner as if it were a decree made by a court in a
suit pending therein.It shall be lawful for the Appellate
Tribunal to send for execution of its orders to the court
within the local limits of whose jurisdiction —
(a) The registered office of the company is situated (in the
case of an order against a company); or
(b) The person concerned voluntarily resides or carries on
business or personally works for gain (in the case of an
 order against any other person) [Section 111(3)].
- Proceedings before Appellate Tribunal deemed to be judicial
proceedings: All proceedings before the Appellate Tribunal
shall be deemed to be judicial proceedings within the
meaning of Section 193 (Punishment for false
evidence),Section 228 (Intentional insult or interruption to
public servant sitting in judicial proceeding), and for the
purposes of Section 196 (Using evidence known to be
false) of the Indian Penal Code, 1860. Furthermore, the
Appellate Tribunal shall be deemed to be civil court for
the purposesofSection 195(Prosecution for contempt of
lawful authority of public servants, for offences against
public justice and for offences relating to documents given
in evidence)andChapterXXVI(Provisions as to offences
affecting the administration of justice) of the
CodeofCriminalProcedure,1973 [Section 111(4)].

22.24 Appeals to Appellate Tribunal: Section 112 of the CGST

Act deals with appeals to the Appellate Tribunal and provides for the
following aspects –

- Orders to which appeal may be preferred before Appellate

Tribunal: Any person aggrieved by an order passed against
him under Section 107 (i.e. order passed by Appellate
Authority) or section 108 (i.e. order passed by Revisional
Authority) of the CGST Act/any of the SGST Acts/any of
the UTGST Actmay appeal to the Appellate Tribunal
against such order within three (3) months from the date
on which the order sought to be appealed against is
communicated to the person preferring the appeal
[Section 112(1)].
- Discretion to refuse appeals concerning disputed amounts
less than fifty thousand rupees: The Appellate Tribunal
has the discretion to refuse to admit any such appeal
where the tax or input tax credit involved/the difference
in tax or input tax credit involved/the amount of fine, fee
or penalty determined by such order, does not exceed fifty
thousand rupees [Section 112(2)].
- Application to Appellate Tribunal by authorized officer:The
Commissioner may (either on his own motion or upon
request from the Commissioner of State
tax/Commissioner of Union territory tax) call for and
examine the record of any order passed by the Appellate
Authority or the Revisional Authority under the CGST
Act/ any of the SGST Acts/any of theUTGST Acts, for the
purpose of satisfying himself as to the legality or propriety
of the said order. The Commissioner may also passan
order directing any officer subordinate to him to apply to
the Appellate Tribunal for determination of such points
 arising out of the said order, as may be specified by the
Commissioner in his order. This application must be
made by the officer so authorized. by within six (6)
months from the date on which the said order has been
passed [Section 112(3)].
The application by the authorized officer, as described
above, shall be dealt with by the Appellate Tribunal as if it
were an appeal made against the order under Section
107(11) or Section 108(1). The provisions of the CGST Act
shall apply to such application, as they apply in relation
to appeals filed Section 112(1) [Section 112(4)].
- Filing of memorandum of cross-objections: A party against
whom an appeal has been preferred under Section 112
may file a memorandum of cross-objections, verified in
the prescribed manner, against any part of the order
appealed against. This memorandum must be filed within
forty-five (45) days of the receipt of notice that an appeal
against such order has been preferred. The provision of
filing memorandum of cross-objectionsis applicable
notwithstanding the fact that the party against whom the
appeal has been preferred may not have appealed against
such order or any part thereof. The memorandum of
cross-objections shall be disposed of by the Appellate
Tribunal, as if it were an appeal presented before it
[Section 112(5)].
- Admission of appeal after expiry of time limit: The Appellate
Tribunal may admit an appeal within three (3) months
after the expiry of the time period referred to in Section
112(1) (i.e. three months from the date on which the order
sought to be appealed against is communicated to the
person preferring the appeal). The Appellate Tribunal is
also empowered topermit the filing of a memorandum of
cross-objections within forty-five (45) days after the expiry
of the period referred to in Section 112 (5). In both cases,
suchextension of time may be granted if the Appellate
Tribunal is satisfied that there was sufficient cause for not
presenting it within the stipulated time period [Section
112(6)].
- Mandatory Pre-Deposit: No appeal shall be filed under
Section 112(1) unless the appellant has paid both–– (a) in
entirety, such part of the amount of tax, interest, fine, fee
and penalty arising from the impugned order, as is
admitted by him; and (b) a sum equal to twenty per cent
(20%) of the remaining amount of tax in dispute, in
addition to the amount paid under Section 107(6), arising
from the said order, in relation to which the appeal has
been filed [Section 112(8)].
However, in terms of the Recommendations made
during the 28th meeting of the GST Council held on 21st
 July, 2018, it has been proposed that the amount of pre-
deposit payable for filing of appeal before the Appellate
Tribunal be capped at Rs.50 crores.
- Stay of recovery proceedings on payment of mandatory pre-
deposit:Where the appellant has paid the amount as per
Section 112(8), the recovery proceedings for the balance
amount shall be deemed to be stayed till the disposal of
the appeal.
- Payment of fees: Every application made before the
Appellate Tribunal, either in an appeal for rectification of
error or for any other purpose; or for restoration of an
appeal or an application, shall be accompanied by such
fees as may be prescribed [Section 112(10)].

22.25 Orders of the Appellate Tribunal: Section 113 of the CGST

Act provides for the orders of the Appellate Tribunal, as described
herein:

- Orders which may be passed by the Appellate Tribunal:The

Appellate Tribunal may, after giving the parties to the
appeal an opportunity of being heard, pass such orders
thereon as it thinks fit. Such orders may confirm, modify
or annul the decision/order appealed against, or may
refer the case back to the Appellate Authority/ Revisional
Authority/the original adjudicating authority (with such
directions as it may think fit) for a fresh adjudication or
decision after taking additional evidence, if necessary
[Section 113(1)].
- Adjournment: At any stage of hearing of an appeal, the
Appellate Tribunal may grant time to any party/parties
and adjourn the hearing of the appeal, for reasons to be
recorded in writing, if sufficient cause is shown for the
grant of such time/adjournment. However, no such
adjournment shall be granted more than three (3) times to
a party during hearing of the appeal [Section 113(2)].
- Amendment of order: The Appellate Tribunal may amend
any order passed by it under Section 113(1) so as to
rectify any error apparent on the face of the record, if
such error is noticed by it on its own accord, or is brought
to its notice by the Commissioner of Central Tax/the
Commissioner of State tax/the Commissioner of the
Union territory tax/the other party to the appeal within a
period of three (3) months from the date of the order.
However, the Appellate Tribunal shall not make any
amendment which has the effect of enhancing an
assessment/reducing a refund or input tax
credit/otherwise increasing the liability of the other party,
unless the party has been given an opportunity of being
heard [Section 113(3)].
 - Time Limit for disposal of appeal: The Appellate Tribunal
shall, as far as possible, hear and decide every appeal
within a period of one (1) year from the date on which it
is filed [Section 113(4)].
- Copy of order passed under Section 113 to be sent to
certain authorities: The Appellate Tribunal shall send a
copy of every order passed under Section 113 to the
Appellate Authority/the Revisional Authority/the original
adjudicating authority (as the case may be), the appellant
and the jurisdictional Commissioner/the Commissioner of
State tax or the Union territory tax [Section 113(5)].
- Order to be final and binding on parties: Save as provided
in Section 117 (i.e. Appeal to High Court) or Section 118
(i.e. Appeal to Supreme Court), orders passed by the
Appellate Tribunal on an appeal shall be final and binding
on the parties [Section 113(6)].

Interest on Refund of Amount paid for admission of appeal:

22.26 In terms of Section 115 of the CGST Act, where an

amount paid by the appellant under Section 107 (6) or Section 112 (8)
is required to be refunded consequent to any order of the Appellate
Authority or of the Appellate Tribunal, interest at the rate specified
under Section 56 of the CGST Act shall be payable in respect of such
refund, from the date of payment of the amount till the date of refund
of such amount.

Appearance of authorized representative:

22.27 Section 116 provides for the appearance of an authorized
representatives, as detailed below:
- Appearance by authorized representative: Any person who
is entitled or required to appear before an officer
appointed under the CGST Act/ the Appellate
Authority/the Appellate Tribunal in connection with any
proceedings under the CGST Act may appear by an
authorized representative. However, when such person is
required under the CGST Act to appear personally for
examination on oath or affirmation, an authorized
representative shall not appear on his behalf [Section
116(1)].
- Meaning of authorized representative:Theexpression
‘authorized representative’ shall, for the purposes of the
CGST Act, mean a person authorized by the person
referred to in Section 116(1) to appear on his behalf. Such
authorized representative may be:
 a) The relative or regular employee of such person;
b) An advocate who is entitled to practice in any court in
India, and who has not been debarred from practicing
before any court in India;
c) Any chartered accountant, a cost accountant or a
company secretary, who holds a certificate of practice
and who has not been debarred from practice;
d) A retired officer of the Commercial Tax Department of
any State Government/Union territory/ the CBIC who,
during his service under the Government, had worked
in a post not below the rank than that of a Group-B
Gazetted officer for a period of not less than two years.
However, such officer shall not be entitled to appear
before any proceedings under the CGST Act for a
period of one (1) year from the date of his retirement or
resignation; or
e) Any person who has been authorized to act as a goods
and services tax practitioner on behalf of the
concerned registered person [Section 116(2)].
- Persons not qualified to appear as authorized
representative: The following persons shall not be qualified
to represent any person under Section 116(1) as an
authorized representative for the time periods stipulated
below
(a) In case of a person who has been dismissed or
removed from Government service–for all times;
(b) In case of a person who is convicted of an offence
connected with any proceedings under the CGST
Act/any of the SGST Acts/ the IGST Act/any ofthe
UTGST Acts/the existing law/ any of the Acts passed
by a State Legislature dealing with the imposition of
taxes on sale of goods or supply of goods or services or
both–for all times;
(c) In case of a person who is found guilty of misconduct
by the prescribed authority – for all times;
(d) In case of a person who has been adjudged as an
insolvent - for the period during which the insolvency
continues [Section 116(3)].

In addition, any person who has been disqualified under

the provisions of the SGST Act or the UTGST Act shall be
deemed to be disqualified under the CGST Act [Section
116(4)].

Provisions relating to Appeal to the High Court:

22.28 Section 117 of the CGST Act provides for filing of appeals
to the High Court in the manner stated below:
- Appeals which may be admitted:Any person aggrieved by
any order passed by the State Bench or Area Benches of
the Appellate Tribunal may file an appeal to the High
Court. The High Court may admit such appeal, if it is
satisfied that the case involves a substantial question of
law [Section 117(1)].
- Time period for filing appeal before High Court: The appeal
filed under Section 117(1) shall be filed within a period of
one hundred and eighty (180) days from the date on
which the aggrieved person receives the order (which has
been appealed against) [Section 117(2)]. However, the
High Court may entertain an appeal after the expiry of the
one hundred and eighty (180) days if it is satisfied that
there was sufficient cause for not filing the appeal within
such period [Proviso to Section 117(2)].
- Determining and hearing substantial question of law:If the
High Court is satisfied that a substantial question of law
is involved in any case, then the High Court shall
formulate that question and the appeal shall be heard
only on the question so formulated. The respondents shall
be allowed to argue that the case does not involve such
question at the hearing of the appeal [Section 117(3)].
However, nothing in Section 117(3) shall be deemed
to take away or abridge the power of the High Court to
hear, the appeal on any other substantial question of law
not formulated by it, if it is satisfied that the case involves
such question. In such circumstances, the High Court
must record the reasons for hear the appeal on such
other substantial question of law not formulated by it
[Proviso to Section 117(3)]
- Judgment and Award of Cost: The High Court shall decide
the question of law formulated in terms of Section 117(3)
and deliver such judgment thereon containing the
grounds on which such decision is founded and may
award such cost as it deems fit [Section 117(4)].
- Determination of issues not determined/determined
incorrectly by the Appellate Tribunal: The High Court may
determine any issue which has either not been
determined or has been wrongly determined (by reason of
a decision on question of law referred to in sub-section (3)
of Section 117) by the State Bench/Area Benches of the
Appellate Tribunal [Section 117(5)].
- Composition of Bench of High Court for hearing appeal: If
an appeal has been filed before the High Court, it shall be
heard by a Bench of not less than two (2) Judges of the
High Court [Section 117(6)].
- Decision by majority:The appeal before the High Court
shall be decided in accordance with the opinion of such
Judges or of the majority (if any) of such Judges [Section
 117(6)]. Where there is no such majority, the Judges shall
state the point of law upon which they differ and the case
shall then be heard upon that point only (by one or more
of the other Judges of the High Court). Such point shall
thereafter be decided according to the opinion of the
majority of the Judges who have heard the case including
those who first heard it. [Section 117(7)].
- Giving effect to judgment by certified copy of judgment: In
case the High Court delivers a judgment in an appeal filed
before it under Section, effect shall be given to such
judgment by either side on the basis of a certified copy of
the judgment [Section 117(8)].
- Application of Code of Civil Procedure Code, 1908:Save as
otherwise provided in the CGST Act, the provisions of the
Code of Civil Procedure, 1908, relating to appeals to the
High Court shall, as far as may be, apply in the case of
appeals under Section 117 of the CGST Act section
[Section 117(9)].

22.29 As per Article 226 every High Court shall have power,
throughout the territories in relation to which it exercises
jurisdiction,to issue to any person or authority, including in
appropriate cases, any Government, within those territories
directions, orders or writs. Such writs shall include writs in the
nature of habeas corpus, mandamus, prohibition, quo-warranto and
certiorari, or any of them, for the enforcement of any of the rights
conferred by Part III and for any other purpose. The concept of writ
jurisdiction is explained in the following section.

Provisions relating to Appeal to the Supreme Court:

22.30 Section 118 of the CGST Act provides for appeals to the
Supreme Court of India. In terms of Section 118(1), an appeal shall lie
to the Supreme Court from:

- Any order passed by the National Bench or Regional

Benches of the Appellate Tribunal [Section 118(1)(a)]; or
- Any judgment or order passed by the High Court in an
appeal made under Section 117of the CGST Act where the
High Court certifies to be a fit one for appeal to the
Supreme Court immediately after passing the said
judgment/order (either on its own motion or on an
application made by or on behalf of the party aggrieved)
[Section 118(1)(b)]. Hence, a certificate from the High
Court that the judgment/order is fit for appeal is required
in order for Section 118(1)(b) to be applicable.
22.31 In terms of Section 118(2) of the CGST Act, the provisions
of the Code of Civil Procedure, 1908, relating to appeals to the
Supreme Court shall, so far as may be, apply in the case of appeals
under Section 118 of the CGST Act as they apply in the case of
appeals from decrees of a High Court. Further, in terms of Section
118(3), where the judgment of the High Court is varied or reversed in
the appeal, effect shall be given to the order of the Supreme Court in
the manner provided in Section 117 (as described above) in the case of
a judgment of the High Court.

22.32 In terms of Article 32(2) of the Constitution of India, the

Supreme Court shall have power to issue directions or orders or writs,
which include writs in the nature of habeas corpus, mandamus,
prohibition, quo warranto and certiorari, whichever may be appropriate,
for the enforcement of any of the rights conferred by Part III. However,
without prejudice to the powers conferred on the Supreme Court by
Articles 32 (1) and 32(2), Parliament may by law empower any other
court to exercise within the local limits of its jurisdiction all or any of
the powers exercisable by the Supreme Court under Article 132(2).
The right guaranteed by Article 32 shall not be suspended except as
otherwise provided for by Constitution of India.

22.33 A writ is a formal written order issued by a body with

administrative or judicial jurisdiction. The power given to the Supreme
Court under Article 32(2) is a large one but it has to be exercised in
accordance with well-established principles. The writs to which
reference has been made must obviously be correlated to one or more
of the fundamental rights conferred by Part III of the Constitution and
can be made only for the enforcement of such rights. The writs
include:
- Writ of habeas corpus– The writ of habeas corpus is
essentially a procedural writ. It deals with the machinery
of justice and not the substantive law. The object of the
writ is to secure release of a person who is illegally
restrained of his liberty. It is a command addressed to
person who is alleged to have another person unlawfully
in his custody requiring him to bring the body of such
person before the court.
- Writ of mandamus– Mandamus, which is a discretionary
remedy, is issued, inter alia, to compel performance of
public duties that may be administrative, ministerial or
statutory in nature.
- Writ of prohibition –Prohibition is a prerogative writ
prohibiting any proceeding or matter. The order of
prohibition is directed to an inferior court forbidding that
court to continue proceedings therein in excess of its
jurisdiction or in contravention of the laws of the land.
- Writ of quo warranto –Quo warrantoprotects the public
from illegal usurpation of public office by an individual
 and the necessary ingredients to be satisfied by the court
before issuing a writ is that the office in question must be
public, created by the Constitution and a person not
legally qualified to hold the office, in clear infringement of
the provisions of the Constitution and the law has been
usurping the same.
- Writ ofcertiorari- A writ of certiorari lies whenever a body
of persons having legal authority to determine question
affecting the rights of subjects and having the duty to act
judicially act in excess of their legal authority; it does not
lie to remove or adjudicate upon the order which is of an
administrative or ministerial nature.

22.34 In most cases, if an aggrieved party intends to appeal

against the order/the judgment of the High Court before the Supreme
Court, then it may do so by filing a Special Leave Petition under
Article 136 of the Constitution of India. Under Article 136(1) of the
Constitution of India, the Supreme Court may, in its discretion, grant
special leave to appeal from any judgment, decree, determination,
sentence or order in any cause or matter passed or made by any court
or tribunal in the territory of India.

22.35 In terms Article 133 of the Schedule to the Limitation Act,

1963, the period of limitation for filing special leave to appeal before
the Supreme Court is sixty (60) days from the date of the order of
refusal (in a case where leave to appeal was refused by the High
Court) and ninety (90) days from the date of the judgment or order (in
any other case).

Sums due to be paid notwithstanding appeal:

22.36 Section 119 of the CGST Act provides that,

notwithstanding that an appeal has been preferred to the High Court
or the Supreme Court, sums due to the Government as a result of an
order passed by the National or Regional Benches of the Appellate
Tribunal under Section 113(1) of the CGST Act/an order passed by
the State Bench or Area Benches of the Appellate Tribunal under
Section 113(1) of the CGST Act/order passed by the High Court under
Section 117 of the CGST Act (as the case may be) shall be payable in
accordance with the order so passed.

Appeal not to be filed in certain cases:

22.37 Section 120 of the CGST Act provides for certain

circumstances where appeal has not been filed. In terms of Section
120(1), the Central Board of Indirect Taxes and Customs (CBIC) may,
from time to time,issue orders/instructions/directions fixing such
monetary limits as it may deem fit, for the purposes of regulating the
filing of appeal or application by the officer of the central tax under
the provisions of ChapterXVIII of the CGST Act. The CBIC may fix
such monetary limits on the recommendations of the Goods and
Services Tax Council.

22.38 As per Section 120(2) of the CGST Act, if, pursuant to the
orders/instructions/directions under Section 120(1), the officer of the
central tax has not filed an appeal or application against any decision
or order passed under the provisions of the CGST Act, such officer of
the central tax shall not be precluded from filing appeal or application
in any other case involving the same or similar issues or questions of
law.

22.39 Section 120(3) states that non-filing of appeal or

application by the officer of central tax pursuant to the
orders/instructions/directions under Section 120(1), shall not entitle
a person (being a party in appeal or application) to contend that the
officer of the central tax has acquiesced in the decision on the
disputed issue by not filing an appeal or application. Further,
according to Section 120(4), the Appellate Tribunal or court hearing
such appeal or application shall have regard to the circumstances
under which appeal or application was not filed by the officer of the
central tax in pursuance of the orders/instructions/directions issued
under Section 120(1).

Non-appealable decisions and orders:

22.40 Section 121 of the CGST Act stipulates the categories of

decisions or orders against which appeal shall not be preferred,
notwithstanding anything to the contrary in any provisions of the
CGST Act. Under Section 121(1), no appeal shall lie against any
decision taken/order passed by an officer of central tax if such
decision taken or order passed relates to any one or more of the
following matters:

a) An order of the Commissioner or other authority empowered

to direct transfer of proceedings from one officer to another
officer;
b) An order pertaining to the seizure or retention of books of
account, register and other documents;
c) An order sanctioning prosecution under the CGST Act; or
d) An order passed under Section 80 of the CGST Act (regarding
payment of tax and other amounts in installments).

Overview of the meaning of ‘revision’:

22.41 Revision refers to the power of a superior authority to call
for and examine the records of an adjudication proceeding (in which a
lower/subordinate authority has rendered a decision/passed an
order) in order to determine the legality and propriety of such
decision/order. The power of revision is different from the power to
hear appeals in respect of such decisions/orders. The process of
revision may be commenced either at the instance of the aggrieved
party or suomotoby the authority that is superior to the authority that
passed the impugned order.
22.42 The superior authority entrusted with the powers of
revision may call for and examine the proceedings of an order passed
by the subordinate adjudicating authority. If such superior authority
finds that the order is erroneous, it may itself revise the order of the
adjudicating authority after giving an opportunity of hearing to the
other party.

22.43 The Supreme Court examined the difference between

appeal and revision in State of Kerala v. K.M.Charia Abdullah &
Co., 1965 AIR 1585, 1965 SCR (1) 601:
- Appeal and revisionare distinct - In the said case, the
Apex Court held that ruled that since the legislature
confers a right of appeal and a discretionary remedy of
revision in different cases, it must be deemed to have
created two jurisdictions that are different as regards
their scope and content. As held by the Court, ‘When it
introduced the familiar concepts of appeal and revision, it
is also reasonable to assume that the well-known
distinction between these two jurisdictions was also
accepted by the legislature. There is an essential
distinction between an appeal and a revision’
- Difference as regards power to revision evidence – As per
the Supreme Court, the difference between appeal and
revision is implicit in the said expressions. Appeal refers
to a continuation of proceedings. The entire proceedings
are before the appellate authority and the said authority
is empowered to review the evidence (subject to the
statutory limitations prescribed).
On the other hand, the revisional authority does not
have the power to review the evidence unless the statute
confers such power on such authority. Even in such
circumstances, the jurisdiction of the revisional
authority is confined to the question of the legality or
proprietary of the impugned order, or the regularity of
the proceedings.
- Revisional Authority is limited in scope of enquiry–A further
limitation on the jurisdiction of a revisional authority is
that it can only exercise its power on the examination of
the record of any order passed or proceedings taken by
 any authority. In other words, the revisional authority
cannot travel beyond the order passed/proceedings
recorded by the inferior authority. Suchrevisional
authority can neither make a fresh enquiry nor pass
orders on merits on the basis of any such fresh enquiry.
The Supreme Court further observed that if the terms
‘appeal’ and ‘revision’ are not construed in the
aforementioned manner, then the distinction between the
two powers would be effaced.
22.44 Similarly, the Apex Court distinguished between the
power of revision and the power to reopen an assessment (in the
context of interpreting Section 263(1) of the Income Tax Act, 1961). It
held that –
‘An order of assessment made by a primary authority may not be
agreed to by a revisional authority. Merely, however, for the fact that the
revisional authority disagrees with the findings of the primary authority,
either in imposing liability or in refusing to impose any liability, such
disagreement cannot be made a ground for interference with the order
of the primary authority. An erroneous order, as is commonly
understood, is not conceived by Section 263. There has been unanimity
in judicial opinion that the error committed by the primary authority
must be an error of jurisdiction, for if the order is not kept confined to
jurisdictional error, no distinction would be left between corrective
powers or power of rectification conferred on an authority under the
provisions of the Act and the revisional power exercisable by another
authority. If the distinction between the power to reopen an assessment
and the power to rectify is not distinguished from revisional jurisdiction,
every incorrect order would become amenable to revisional jurisdiction
and the fall out would be that revisional jurisdiction would then become
exercisable even in a case where the provisions for initiating a
rectification proceeding are attracted. Such an approach would lead to
intermingling of powers by various authorities resulting in utter
confusion and uncertainty. Such a situation is not comtemplated by any
statute. It is clear that every error cannot be an error of jurisdiction and
every error of an assessing authority is not open to exercise of
suomoturevisional powers under Section 263.’

Provisions relating to revision under the CGST Act:

22.45 Chapter XVIII of the CGST Act, containing Sections 107 to
121, contains inter alia provisions relating to appeals under the CGST
Act. Section 2(99) of the CGST Act defines Revisional Authority as the
‘authority appointed or authorized for revision of decision or orders as
referred to in section 108’.

22.46 Section 108 prescribes the powers of the Revisional

Authority, as stated below:
- Cases where power under Section 108 may be exercised: The
Revisional Authority may on his own motion/upon information
received by him/ on request from the Commissioner of State
tax or the Commissioner of Union Territory tax, call for and
examine the record of any proceedings (subject to the
provisions of Section 121, which stipulates non-appealable
decisions and orders, and the rules made thereunder). The
RevisionalAuthority may (if necessary) stay the operation of
any decision/order passed under the CGST Act/the SGST
Act/the UTGST Act by an officer subordinate to him, if he
considers that such decision/order is erroneous in so far as it
is prejudicial to the interest of revenue and is illegal or
improper or has not taken into account certain material facts,
whether available at the time of issuance of the said order or
not or in consequence of an observation by the Comptroller
and Auditor General of India. The Revisional Authority may
stay such decision/order for such period as he deems fit. After
giving the person concerned an opportunity of being heard and
after making such further inquiry as may be necessary, the
Revisional Authority may also pass such order, as he thinks
just and proper, including enhancing or modifying or
annulling the said decision or order [Section 108(1)].
Under Section 108, the term ‘record’ shall include all records
relating to any proceedings under the CGST Act available at
the time of examination by the Revisional Authority.
Furthermore, the term ‘decision’ shall include (for the purpose
of Section 108) intimation given by any officer lower in rank
than the Revisional Authority [Section 108(6)].
- Cases where power under Section 108 may not be exercised:
The powers under Section 108(1) may not be exercised by the
Revisional Authority in the following cases:
a) The order has been subject to an appeal under Section 107
(before Appellate Authority) or Section 112 (before Appellate
Tribunal) or Section 117 (before High Court) or Section 118
(Supreme Court);
b) The period specified under Section 107(2) (i.e. six months
from the date of communication of decision/order referred
to under the said sub-section) has not yet expired or more
than three years have expired after the passing of the
decision or order sought to be revised;
c) The order has already been taken for revision under
Section 108 at an earlier stage; or
d) The order has been passed in exercise of the powers under
Section 108(1)
However, the Revisional Authority may pass an order under
Section 108(1) on any point that has not been raised and
decided in an appeal before the Appellate Authority,
Appellate Tribunal, High Court or Supreme Court, before
the expiry of a period of one (1) year from the date of the
 order in such appeal; or before the expiry of a period of
three (3) years from the decision or order sought to be
revised, whichever is later [Section 108(2)].

- Order of Revisional Authority to be final and binding on parties –

Subject to the provisions of Section 113 (Orders of Appellate
Tribunal) or Section 117 (Appeal to High Court) or Section 118
(Appeal to Supreme Court), every order passed in revision
under Section 108(1) shall be final and binding on the parties.

- Calculation of limitation for revision: If the aforementioned

decision/order involves an issue on which the Appellate
Tribunal/High Court has given its decision in some other
proceedings, and an appeal is pending before the High
Court/Supreme Court against such decision of the Appellate
Tribunal/High Court, the period spent between the date of the
decision of the Appellate Tribunal/High Court and the date of
the decision of the High Court/Supreme Court (as the case
may be) shall be excluded in computing the period of
limitation referred to in Section 108 (2) (b) where proceedings
for revision have been initiated by way of issue of a notice
under Section 108 [Section 108(4)]. If the issuance of an
order under Section 108(1) is stayed by the order of a court or
Appellate Tribunal, the period of such stay shall be excluded
for the purpose of computing the period of limitation referred
to in Section 108 (2) (b) [Section 108(5)].

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